New Zealand government closes door on software patents

Opposition party calls the decision a "humiliating back down."

The ruling party in New Zealand has decided to drop a controversial plan to expand patenting of software in the island nation. The move was hailed by IT professionals and open Internet advocates.

Earlier versions of the government's proposed overhaul to New Zealand's patent laws seemed to open the door to patents on software by only excluding patents that covered "a computer program as such." The opposition Labour Party warned that the words "as such" could be "fatal for Kiwi innovation," as it would be easy for companies to draft patents that effectively covered software inventions without claiming software "as such."

"It's not too late for Mr. Foss to change his mind and listen to our Kiwi software innovators," a Labour spokeswoman said earlier this year. "If not then his legacy will be one of massive failure for our local software industry."

This week, New Zealand Commerce Minister Craig Foss bowed to pressure from software patent opponents. The latest language states clearly that "a computer program is not an invention," and is not eligible for patent protection. The Labour Party called it "a humiliating back down."

The decision was hailed by InternetNZ, a non-profit organization that promotes an open Internet. "Patenting software would not only make the continued development of the Internet more difficult, it would reduce innovation and could well stymie interoperability of various software platforms," the group wrote on Thursday.

New Zealand's Institute of IT Professionals also praised the move. "If you look at the New Zealand market, you would be hard pressed to find many people that were thinking patents would be a good idea," the organization's chief executive Paul Matthews told the New Zealand Herald.

For decades, the United States has suffered from much ambiguity over the legal status of software patents. The Supreme Court has long held that mathematical algorithms cannot be patented, but lower courts' interpretation of the court's decisions has been rathermuddled. Congress has never directly addressed whether software can be patented.

Personally I think that there are times when software patents make sense (which means that, based on previous experience, I am looking forward to getting a slew of responses calling me an idiot for trying to patent "thought" :-) ) but it does seem like their existence causes more problems than it solves so I doubt that New Zealand will miss them.

Personally I think that there are times when software patents make sense (which means that, based on previous experience, I am looking forward to getting a slew of responses calling me an idiot for trying to patent "thought" :-) ) but it does seem like their existence causes more problems than it solves so I doubt that New Zealand will miss them.

You think there's times when it makes sense to patent math? I'm curious. Do you have an example of what you might mean?

Personally I think that there are times when software patents make sense (which means that, based on previous experience, I am looking forward to getting a slew of responses calling me an idiot for trying to patent "thought" :-) ) but it does seem like their existence causes more problems than it solves so I doubt that New Zealand will miss them.

You think there's times when it makes sense to patent math? I'm curious. Do you have an example of what you might mean?

How do you define math, though? I consider mathematics to be an overloaded term that refers both to a form of language for expressing ideas about abstract concepts and a set of rules for manipulating symbols; it is worth noting that there are numerous kinds of math built using various kinds of logic so there isn't a single set of "mathematics" (although people usually use ZFC set theory with classical intuitionist logic as the common basis, to the extent that they are thinking this deeply about it at all). Given this, to me *all* patents could be expressed using math by building up from commonly agreed upon abstractions using symbolic language; the only reason why we do not do this for all patents is because it is very cumbersome so we instead use languages that are not as precise because an intelligent reader can (presumably) fill in the missing details.

Personally I think that there are times when software patents make sense (which means that, based on previous experience, I am looking forward to getting a slew of responses calling me an idiot for trying to patent "thought" :-) ) but it does seem like their existence causes more problems than it solves so I doubt that New Zealand will miss them.

You think there's times when it makes sense to patent math? I'm curious. Do you have an example of what you might mean?

Math is not necessarily involved in software patents...thought it could be.

The interesting bits of software are algorithms and all algorithms are math. There's a fair bit of reductionism in such an argument but as far as it goes it's true.

Personally I think that there are times when software patents make sense (which means that, based on previous experience, I am looking forward to getting a slew of responses calling me an idiot for trying to patent "thought" :-) ) but it does seem like their existence causes more problems than it solves so I doubt that New Zealand will miss them.

You think there's times when it makes sense to patent math? I'm curious. Do you have an example of what you might mean?

How do you define math, though? I consider mathematics to be an overloaded term that refers both to a form of language for expressing ideas about abstract concepts and a set of rules for manipulating symbols; it is worth noting that there are numerous kinds of math built using various kinds of logic so there isn't a single set of "mathematics" (although people usually use ZFC set theory with classical intuitionist logic as the common basis, to the extent that they are thinking this deeply about it at all). Given this, to me *all* patents could be expressed using math by building up from commonly agreed upon abstractions using symbolic language; the only reason why we do not do this for all patents is because it is very cumbersome so we instead use languages that are not as precise because an intelligent reader can (presumably) fill in the missing details.

Perhaps. If the universe is a computer, then that's true. There is no conclusive evidence for that theory though. We do know however that all computer programs are fundamentally mathematical functions. So, interesting idea, but you are conflating a possibility with a certainty.

A critical point that seems to be missed by the media in New Zealand, is that software is currently patentable in New Zealand - the proposed law was to be introduced as part of a new Patents Act that would more clearly define what a patentable invention is.

The original change to allow software patents was in the late 1990's following the IBM case in the US. There hasn't been the same issues with trolling as in the US - but software patents still seem unnecessary and don't support the purpose of encouraging innovation.

Under the current law software can be patented as long as it creates "an artificial state of affairs" - following the NRDC decision in Australia. Usually this is interpreted as requiring an interaction with the real world - such as a computer (being a real thing), rather than just an algorithm which could be performed in someone's mind.

Where does the assumption that the universe is a computer enter into my reasoning at all? Certainly the existence of physical laws that can be expressed mathematically need no such assumption to work. Likewise, any physical invention could be described using a form of mathematical language that models the process involved.

It never fails to amaze me how often the least qualified to enact laws or regulations on tech (Lawyers) are the ones who most often do it.

The simple reason is that intelligent people who CAN make the proper decisions are also those who couldn't give a toss about becoming a politician.

Laws are made by lawyers because they're the only ones dumb enough to want to be a politician... oh and accountants... which means politicians share a double helping of people I despise because they are either lawyers or accountants who I despise because they are the very ones thwarting the development of technology.

Plus I spent 4 months working doing the IT for the New Zealand government and trust me, I've seen more civility in kindergarten than I have in parliament.

Plus I spent 4 months working doing the IT for the New Zealand government and trust me, I've seen more civility in kindergarten than I have in parliament.

Now, that's a little unfair... I mean, what did those kindergarten kids ever do to you, to justify that comparison.

But it is completely true, the number of of stupid requirements that make it into final builds of NZ goverment systems, because of stupid politicians making stupid promises or requests, is unfathomable.

Software is written. Therefore it can be copy-written. The processes used can be patented because they are things that a computer executes in a specific manner.

But the THING that the computer executes can't be patented because many different processes can execute the same things in different manners. If someone comes up with a mousetrap, they can't patent the idea of a mousetrap.

What's wrong with U.S. patent laws is that the idea of a mousetrap can be patented, even without a process. That's completely bogus. If you have a process, great. Patent the process. If not, and you came up with a GREAT IDEA, too bad if you can't figure out how to implement it.

As for patent trolls, I say that as long as a patent is held by the original patent holder, it has value to that patent holder in royalties. They can assign licenses and reap profits from their labors. Once it's sold by the original patent holder, that's it. The buyer can only reap the original patent owner's current income from the patent. Others can use the patent for free as long as they're not caught. If they're caught, there's no penalty, but they have to pay retroactively and for as long as they sue it according to the license rates already assigned by the original patent holder.

It's time that only the original patent holders (and their inheritors) profit from patents, and let buyers figure out whether it's worth buying the patent to make money from it. IMHO, this protects the "intellectual Property rights" of the makers in the best way, leaves the blood-suckers slim pickings, and honors the concept of patenting in the first place.

Personally I think that there are times when software patents make sense (which means that, based on previous experience, I am looking forward to getting a slew of responses calling me an idiot for trying to patent "thought" :-) ) but it does seem like their existence causes more problems than it solves so I doubt that New Zealand will miss them.

You think there's times when it makes sense to patent math? I'm curious. Do you have an example of what you might mean?

Math is not necessarily involved in software patents...thought it could be.

The interesting bits of software are algorithms and all algorithms are math. There's a fair bit of reductionism in such an argument but as far as it goes it's true.

Yeah, and all physical machines could be described in terms of physics. Are there problems with the patent system, especially concerning software patents? Yes, of course. I don't know if you're trying to say "ergo, software cannot be patented", but to completely reject the idea of patents on software (or any mathematical process) is absurd.

Yeah, and all physical machines could be described in terms of physics. Are there problems with the patent system, especially concerning software patents? Yes, of course. I don't know if you're trying to say "ergo, software cannot be patented", but to completely reject the idea of patents on software (or any mathematical process) is absurd.

[quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24462671#p24462671]the cross[/url]"][quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24462591#p24462591]divisionbyzero[/url]"]Perhaps. If the universe is a computer, then that's true.[/quote]

Where does the assumption that the universe is a computer enter into my reasoning at all? Certainly the existence of physical laws that can be expressed mathematically need no such assumption to work. Likewise, any physical invention could be described using a form of mathematical language that models the process involved.[/quote]

It's purely speculative to suggest that all other patents could be described in mathematical language. The universe being a computer is one assumption where it would be true. Do you have a better justification because all I see is speculation?

[quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24463047#p24463047]the cross[/url]"]Okay, based on my vote totals my writing against the groupthink will not be tolerated here so there is no point in continuing. :-)[/quote]

Ah, yes, the ole, "Whenever everyone else thinks I'm wrong it's merely because they are uncritically assuming the understanding of the group" defense. It's more likely than not actually because you haven't thought through your own assumptions.

Okay, based on my vote totals my writing against the groupthink will not be tolerated here so there is no point in continuing. :-)

Ah, yes, the ole, "Whenever everyone else thinks I'm wrong it's merely because they are uncritically assuming the understanding of the group" defense. It's more likely than not actually because you haven't thought through your own assumptions.

When people respond to a comment I wrote by making an assumption I never implied and then criticizing me based on that assumption then I generally don't consider that criticism to be particularly insightful, but I suppose that we all have our own standards for such things. :-)

[quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24463279#p24463279]lordcheeto[/url]"][quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24462575#p24462575]divisionbyzero[/url]"][quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24462469#p24462469]sigzero[/url]"][quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24462429#p24462429]LuDux[/url]"][quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24462393#p24462393]the cross[/url]"]Personally I think that there are times when software patents make sense (which means that, based on previous experience, I am looking forward to getting a slew of responses calling me an idiot for trying to patent "thought" :-) ) but it does seem like their existence causes more problems than it solves so I doubt that New Zealand will miss them.[/quote]You think there's times when it makes sense to patent math? I'm curious. Do you have an example of what you might mean?[/quote]Math is not necessarily involved in software patents...thought it could be.[/quote]The interesting bits of software are algorithms and all algorithms are math. There's a fair bit of reductionism in such an argument but as far as it goes it's true.[/quote]Yeah, and all physical machines could be described in terms of physics. Are there problems with the patent system, especially concerning software patents? Yes, of course. I don't know if you're trying to say "ergo, software cannot be patented", but to completely reject the idea of patents on software (or any mathematical process) is absurd.[/quote]

Besides your assertion that it is absurd what else do you have? Under current law mathematical processes are not patentable. And therefore if it is a mathematical process it is not patentable by definition.

Where does the assumption that the universe is a computer enter into my reasoning at all? Certainly the existence of physical laws that can be expressed mathematically need no such assumption to work. Likewise, any physical invention could be described using a form of mathematical language that models the process involved.

It's purely speculative to suggest that all other patents could be described in mathematical language. The universe being a computer is one assumption where it would be true. Do you have a better justification because all I see is speculation?

Here's one way that it could be done: encode the description of an invention into the solution of an equation. Because the invention is a solution of an equation it is therefore math and so unpatentable.

I agree with you that this sounds ridiculous but that is exactly my point: saying that all math is off limits leads to absurd situations like this, so we need a more sophisticated kind of limit.

[quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24463517#p24463517]the cross[/url]"][quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24463513#p24463513]divisionbyzero[/url]"][quote="[url=http://arstechnica.com/civis/viewtopic.php?p=24463047#p24463047]the cross[/url]"]Okay, based on my vote totals my writing against the groupthink will not be tolerated here so there is no point in continuing. :-)[/quote]

Ah, yes, the ole, "Whenever everyone else thinks I'm wrong it's merely because they are uncritically assuming the understanding of the group" defense. It's more likely than not actually because you haven't thought through your own assumptions.[/quote]

When people respond to a comment I wrote by making an assumption I never implied and then criticizing me based on that assumption then I generally don't consider that criticism to be particularly insightful, but I suppose that we all have our own standards for such things. :-)[/quote]

So, your answer is you have no answer? No wonder you are getting voted down. I offered one assumption under which you could be right, not the only one, but you haven't provided any other justification. I was actually being charitable but it's clear you just have a set of precious ideas and not any sort of reasoned insight.

Personally I think that there are times when software patents make sense (which means that, based on previous experience, I am looking forward to getting a slew of responses calling me an idiot for trying to patent "thought" :-) ) but it does seem like their existence causes more problems than it solves so I doubt that New Zealand will miss them.

You think there's times when it makes sense to patent math? I'm curious. Do you have an example of what you might mean?

How do you define math, though? I consider mathematics to be an overloaded term that refers both to a form of language for expressing ideas about abstract concepts and a set of rules for manipulating symbols; it is worth noting that there are numerous kinds of math built using various kinds of logic so there isn't a single set of "mathematics" (although people usually use ZFC set theory with classical intuitionist logic as the common basis, to the extent that they are thinking this deeply about it at all). Given this, to me *all* patents could be expressed using math by building up from commonly agreed upon abstractions using symbolic language; the only reason why we do not do this for all patents is because it is very cumbersome so we instead use languages that are not as precise because an intelligent reader can (presumably) fill in the missing details.

The problem with this argument is that the mathematics of a mechanical device are merely stepping stones to an actual physical product, not the product itself. Software is a description of a mathematical process and that's it, and generally things which are descriptions of something in a language are protected by copyright, not patents. It's not readily readable to a lot of people. It's transformed along the way from source to finished product by compilers and whatnot. But claiming that computer math deserves patent protection because it is math in different form makes little sense. I can refactor an equation and convert the numbers to roman numerals quite easily, but just because I've made it more difficult to follow does not mean that it's actually different.

There is also the issue of knowing when patents have been infringed. Because a large number of patents are of the form 'do x on a new form factor with no real modifications', and because the patent office doesn't really examine patents at all, a lot of patents are vague nonsense. I think the best analogy would be with music: if chord progressions and musical forms were patentable, it would be *impossible* to write any new music without worrying about being sued into oblivion or making something so godawful that nobody would listen to it.

I think the most important thing to consider is that we would not be having this discussion if patent trolling had not become so common. Patent holders are not exercising their rights in a responsible way. And they will not police themselves because their portfolios are too valuable to risk should a case call the validity of certain kinds of patents into question. If they end up losing their rights, good. They dug their own grave here.

Do you think that the first person to discover the Pythagorean Theorem should have had the right to patent it? Obviously not because it is too general and broad. It applies to all right triangles. The same goes for algorithms. Perhaps a particular combination of algorithms might be patentable but that's not what you have been arguing for.

Personally I think that there are times when software patents make sense (which means that, based on previous experience, I am looking forward to getting a slew of responses calling me an idiot for trying to patent "thought" :-) ) but it does seem like their existence causes more problems than it solves so I doubt that New Zealand will miss them.

You think there's times when it makes sense to patent math? I'm curious. Do you have an example of what you might mean?

How do you define math, though? I consider mathematics to be an overloaded term that refers both to a form of language for expressing ideas about abstract concepts and a set of rules for manipulating symbols; it is worth noting that there are numerous kinds of math built using various kinds of logic so there isn't a single set of "mathematics" (although people usually use ZFC set theory with classical intuitionist logic as the common basis, to the extent that they are thinking this deeply about it at all).

I hope you're not trying to tell anyone that the naifs who declaim soundbytes like "all software is math" have been thinking deeply about this.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.